R v Soles

[2014] NZHC 2665

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-092-014293 [2014] NZHC 2665

THE QUEEN

v

RALPH SHERMAN SOLES

Appearances:

S L McColgan for Crown

N E Walker for Defendant

Date:

29 October 2014

SENTENCING NOTES OF COURTNEY J

R v RALPH SHERMAN SOLES [2014] NZHC 2665 [29 October 2014]

[1]      Ralph Sherman Soles, you appear for sentence today having been found guilty on one charge of importing methamphetamine.  The maximum penalty for that charge is life imprisonment.1

[2]      The facts are briefly stated.   On 28 December 2013 you were stopped at Auckland Airport and your luggage searched.   One of the bags you were carrying was a suitcase that contained some worn garments and an old curtain.  Nevertheless, it was a very heavy suitcase and further enquiries revealed that a false lining had been inserted which contained six kilograms of methamphetamine.

[3]      Your explanation was that you had been offered a free trip to Africa on the promise of splitting some money with the unknown person who had contacted you by email.   When you reached Johannesburg, rather than being asked to sign the necessary documents you had come to sign, you were instead asked to deliver a suitcase to Fiji.  The suitcase was as I have described.  The circumstances in which it was delivered to you and the nature of it made you immediately suspicious.  You opened it to check what was inside.  You say that your suspicions were allayed by the discovery of some clothing and what might have been a tapestry.   You still wondered about the weight of the suitcase but say that you put it down to an unusual construction, a suitcase made of wood.

[4]      The Crown case at trial was put on the basis that, having had your suspicions aroused you deliberately refrained from making enquiries that would satisfy those suspicions and were therefore wilfully blind as to the contents of the suitcase.  That is plainly the basis for the guilty verdict and I proceed to sentence on that basis.

[5]      The Court of Appeal has provided guidance for judges sentencing in drug importation cases in its decision of R v Fatu.  In that case the Court of Appeal has indicated that the importation of 500 grams or more of methamphetamine should attract a starting point of 12 years with a range from that up to life imprisonment and that that range should apply to all, including drug mules which is what you are or

were.   Six kilograms is a significant figure and if one viewed your offending as

1      Misuse of Drugs Act 1975, s 6(1)(a).

simply as importation of six kilograms of methamphetamine by a drug mule the

starting point would be between 12 and 15 years’ imprisonment.2

[6]      However, the cases involving similar quantities of methamphetamine brought into this country by mules have involved offenders with actual knowledge of what they were carrying.3     The Crown put its case against you on the basis of wilful blindness;  that  is  to  say,  it  did  not  allege  that  you  actually  knew  the  suitcase contained a controlled drug, but that you had your suspicions aroused to that possibility and deliberately refrained from making enquiries to find out the truth.

[7]      The Crown counsel and Ms Walker, your lawyer, both submit that wilful blindness should be treated as a lesser form of culpability than offending with actual knowledge.   On that basis the Crown has suggested a starting point of 14 years’ imprisonment but Ms Walker has suggested a starting point of six to eight years’ imprisonment.  Ms Walker has submitted that you should be sentenced on the basis that your suspicions were aroused as to the possibility that you were being asked to carry an unknown amount, possibly much less than six kilograms, of an unknown drug.

[8]      She also submits, and I accept this, that your motivation in carrying the drugs was not commercial in the sense of making money from the drugs.  Your motivation for the whole trip was money but from what appears to be a classic Nigerian scam.  I am  cautious of responding too  leniently to  a situation  of wilful  blindness.   An important objective in sentencing in these kinds of cases is deterrence.  Treating the wilfully blind drug mule much more leniently than a drug mule with actual knowledge risks conveying a message to drug importers and others in your situation that they are better not to make enquiries than to risk doing so and discovering the truth.  However, I do accept that your circumstances are extremely unusual, possibly unique, and certainly show a lower degree of culpability than is evident in any of the

cases to date involving methamphetamine importation.

2      R v Ang HC Auckland CRI-2008-004-012540, 18 November 2008; R v Tyniec HC Auckland

CRI-2011-092-006373, 1 August 2011.

3      R v Martin HC Auckland CRI-2004-404-005148, 11 April 2006 in which the importation of

1.79kg of cocaine attracted a starting point of 12 years, although usually cited for the discussion on wilful blindness was, in fact, a case of actual knowledge.

[9]      I do not consider that a starting point of six to eight years is realistic.   I consider that an appropriate starting point in the circumstances you were in is 10 years’ imprisonment.   There are no factors that would require me to increase that starting point.  But there are factors that lead me to reduce it.

[10]     These are, first, your age and ill health.  Now 73 years old, you suffer from a neuropathy, which is painful and requires daily medication and pain relief.  You also take medication for angina.   You have limited mobility and use a wheelchair.   I accept that a lengthy period of imprisonment for an elderly man in ill-health will be disproportionately harder than would the same sentence be if imposed on a much

younger and healthier man.4    I acknowledge that any allowance made on this basis

cannot  be regarded  as  a licence to  commit  crime  by reason  of age or medical conditions, but in your circumstances a substantial discount is warranted and I allow

30 per cent.

[11]     You also rely on the fact that you have no previous convictions and you have provided evidence of your good character through references that speak to your active involvement in your church and in the Disabled American Veterans’ Organisation.  The Court of Appeal has indicated that good character should carry little weight in sentencing in drug offending in which the greater consideration is deterrence.5   However, in the case of an elderly man whose culpability is low, I am satisfied that a modest reduction should be allowed and I do allow a further five per cent.

[12]     The final factor I can take into account to reduce the sentence is your status as a foreign national.  In some ways you are in a better position than some foreign nationals who find themselves imprisoned here.  The culture is not unfamiliar and you speak English.  However, you will be imprisoned far from friends and family. You will not have the kind of support that local prisoners have and for an elderly man that will be very hard.  The Court of Appeal has made clear statements to the

effect that deterrence requires foreign nationals who come to this country bringing

4      R v Verschaffelt [2002] 3 NZLR 773 (CA) at [22].

5      R v Wang [2014] NZCA 409. I note that in Quinlan v R [2013] NZCA 634 at [38] – [39] the Court of Appeal sanctioned a modest discount for a previous clean record but the drug offending was much less serious than importation of methamphetamine.

drugs with them cannot expect leniency if they are caught and prisoned.  To show leniency for that reason would provide encouragement to those who organise drug importation and those who are prepared to offend in this country.  But I accept Ms Walker’s submission that your circumstances are again rather different to those of the typical drug mule importing methamphetamine into New Zealand.6    You were not targeting New Zealand.  In fact you seem to have come here somewhat by accident through a mix-up with your ticketing.  You did not know precisely what the drugs were, precisely how much there was and, in any event, the drugs were not destined

for here.  In these circumstances I allow a further five per cent.

[13]     Your counsel has sought to have me reduce the sentence further to recognise your assistance and cooperation with authorities.  I do not accept that there is a basis for this submission.   Genuine cooperation and assistance can be recognised.   But, having reviewed the interview you gave following the discovery of the drugs in the suitcase, I am not satisfied there was any real cooperation or assistance.  You simply gave the authorities the implausible account which the jury rejected.   Whilst one does  feel  sympathy for  an  elderly man  taken  in  as  you  were,  I must  keep  the objectives of sentencing for serious offending clearly in mind.

[14]     The end result, therefore, is a sentence of six years’ imprisonment.  Although it is common in drug cases for a minimum period of imprisonment to be imposed that is unnecessary here.  I would expect that you will be deported when you have completed your sentence.   There is no realistic risk of your re-offending and the circumstances of your offending and your personal circumstances are so unusual as

to be unlikely to have any effect in relation to offending by others. Thank you.

P Courtney J

6      R v Chen & Ors [2009] NZCA 445.